Most mornings now, we wake to read of another ram raid. We are also confronted with increased shootings and violent crime. More relevant is, what are the police doing about it?
Headline this week: Operation Cobalt: Police issue 15,000 traffic tickets to gang members in disruption tactic. (1)
Issuing traffic infringements in Fendalton, Karori and Remuera won’t reduce crime but definitely it will boost the coffers, for denizens of these sectors do pay their fines, even if it’s only for doing 56 kph in a 50 kph zone.
However, issuing fines to gang members, which will never be paid and has little impact on bandits who ride their chariots irrespective of WOF, registration or legal ownership? Is this the solution to the crime wave?
In spite of these parodies of police perfection, in my view, the current, out of control crime rate, lies not with police but squarely at the feet of the Courts.
‘What the hell is going on?’ the reader asks?
Rapes several women and gets home detention?
Kills driving while way over the limit and while disqualified but does not go to jail?
Critically injures – for life – someone who happened to be in the wrong place (walking home) when young hoods wanted all the footpath? No jail even though the offender has multiple convictions for similar behaviour?
Take the fellow last week in South Auckland who approached the driver of a car which tail-ended his car in a petrol station compound. In front of CCTV and witnesses, the driver of the offending vehicle violently attacks the family man who asked for name and address for an insurance claim.
While this assault is happening, others from the offender’s vehicle, steal items from the victim’s car.
Blatant contempt for the law. Blatant disregard of CCTV and witnesses. And most disturbing, clearly “no worries” about penalties when they are caught.
No fear of any penalty from the Courts.
These crimes are a demonstration of blatant disregard for penalties which Parliament enshrined in our laws but which are rarely applied:
Assaults of serious level- 14 years jail.
Thefts – depends on the value of the items – 12 months — 7 years.
Robbery i.e., theft with violence — 14 years.
Rape & sex crimes — 14 years.
Drug crimes – a long time free board at His Majesty’s Hotel.
These penalties suggest parliament considered them to be “serious crimes.
In most cases, the police do locate, apprehend, and charge offenders for serious crime who are eventually brought before the Courts. The problem is, the offenders are out in the street before the court crier calls ‘All rise’ to signal the end of “Justice”, for the day.
Don’t blame the fuzz. The police detect and apprehend bad guys.
It’s the Courts who allow offenders to walk with penalties that are offensive to most Kiwis. For the most recent example?
The latest classic from the Courts, 22 October 2022: Victim-rejects-200-payment-from-man-who-escaped-conviction-for-her-indecent-assault. Judge reckoned identifying the villain would wreck his job prospects – and in so doing denies a future employer of knowing he/she just employed a potential sexual predator. (2)
But it doesn’t stop there. Common Law prevails?
The contribution of the Courts to the delivery of “justice” becomes even more endangered when we review their penchant for creating “new laws” a.k.a. “common law”.
When offenders i.e., perpetrators of serious crime, get off with “discounts”, because:
(a) they had a difficult childhood
(b) have a Maori “cultural” report
Judges might argue that they are merely following orders aka complying with instructions to do with soft sentencing – viz sensible sentencing.
However, the option of judges claiming the “Nuremburg defence” of “just following orders”, cannot be applied in New Zealand.
There are two main sources of law: statutes, i.e., the laws passed by our democratically elected representative Parliament and ‘common law’ i.e., made by career bureaucrats a.k.a. Mandarins (3).
Common law has been developed by judges over the centuries, and may be amended and developed by the courts to meet changing circumstances. However, the democratically elected parliament remains supreme and may repeal, modify, or develop the common law by statute.
This delivery of law is a manifestation of democracy. And, this is where a case can be made that our Courts have overstepped the boundaries with their banal interpretation of Maori myth and fables, as having such credibility as to warrant consideration in the evolution of common law, to guide the country.
The Ellis case, in my opinion, is a classic example and contributes to the concern that our premier Court is on a crusade to elevate the Courts above parliament.
[Stephen Franks impressive clinical debunking of the Ellis case seems to arrive at a similar conclusion. (4)]
Several times I have addressed this Mission of the Judiciary i.e., to replace our democratically parliament, as the source of all wisdom – and law making.
For example, as far back as the reign of Rt Hon Helen Clark, a contest was evident between the chief justice and the prime minister. (5)
A critical point in time was the focus on some 200 claims by Maori to ownership of the foreshore and seabed. Rt Hon Helen Clark (for whom I have respect) made it clear to the then Chief Justice Sian Elias (for whom I have no respect), following the latter’s speculative commentary about the sanctity of Maori Customary law, that the ultimate law-making body in New Zealand was its Sovereign Parliament.
The outcome of what appeared to me to be a bit of a power play between both ladies, was that Prime Minister Helen Clark’s Labour government in 2004 passed the Foreshore and Seabed Act which deemed the title to be held by the Crown.
Helen Clark won that round and reasserted the right of parliament to be the ultimate law-making authority in New Zealand.
Fast forward: In a critique of the Ellis case, Stephen Franks (6) writes;
“Courts now have a wide discretion to apply tikanga in any case they see fit. In addition, some commentators believe the decision has added another layer of complexity and uncertainty to the law.”
(Franks) goes on to comment that the decision should embarrass all New Zealand lawyers, “as a display of radical chic masquerading as legal reasoning”.
“Our top court can use the jargon, but if it understands rule of law principles it has decided they are just too yesterday – indeed ‘colonial’.”
As I penned last week, Common Law does have its role in the evolution of legal process, reflecting contemporaneous values of society in the interpretations of statutory law but there is a limit and that is the sovereignty of parliament as the ultimate power: (7)
This Latest Court decisions suggest that the ultimate law maker in NZ, is a bunch of unelected bureaucrats
The problem with that outcome is: New Zealand’s democratically elected parliament is the ultimate law maker AND it cannot bind successor parliaments – which means that successors are also the ultimate law maker in New Zealand during their time in the Hallowed Halls.
So, how did we get to the situation where Courts are making the laws of New Zealand?
For the uninitiated, there are two sorts of laws in New Zealand: Statutory Law – made by democratically elected parliament and – collateral law being interpretations of statutory law by the Courts which is called Common Law.
Common Law lasts as long as Parliament decides that Court interpretations of Parliament i.e., Statutory law, is out of kilter. Then Parliament makes new Statutory laws.
Blame not the police for the crime wave which has spread like a tsunami under this Labour government of Rt Hon Jacinda Ardern.
Blame this labour government for failing to do what Rt Hon Helen Clark did in 2004 when she asserted the omnipotence of parliament as our law maker.
Question is? Do you think Mr Luxon has what it takes to be as constitutionally astute as was Helen Clark, to reinforce parliament as the supreme law-making power of New Zealand and courageous enough to re-write new statutory laws to annul common laws which now prevail in our courts?
Ross Meurant, graduate in politics both at university and as a Member of Parliament; formerly police inspector in charge of Auckland spies & V.I.P. security; currently Honorary Consul for an African state, Trustee and CEO of Russian owned commercial assets in New Zealand and has international business interest.